Courts can force defamation cases into mediation, even when plaintiff refuses

Magistrates presiding over defamation cases have the power to force claims into mediation, even if one of the parties refuses to have the matter resolved under the less litigious forum of mediation.

The new Media and Defamation Act has given Maltese newspapers an important avenue to seek less cumbersome court proceedings in defamation claims, by having the matter mediated to seek a faster and less onerous solution on claims.

Doubts as to whether a plaintiff could wilfully refuse mediation to force a defamation case through its usual court procedure, have been put paid by justice minister Owen Bonnici, who said that even when one of the parties refuses mediation, the presiding magistrate can refer the case to mediation if the court feels that this could change the parties’ outlook to the case.

“The decision as to whether a case can be settled through mediation is one which is taken by the court,” Justice Minister Owen Bonnici told this newspaper. “Therefore the Court might still refer the case to mediation in a situation where one of the parties is adamant not to mediate.

“Although such a scenario appears unlikely, it is possible especially when the presiding magistrate would consider that mediation may lead the parties to change their outlook of the situation,” the minister said.

This means that parties reluctant to mediate – as vexatious plaintiffs are wont to do in a bid to put off sentencing or pursue ‘political’ libels – could still be forced to mediation by the presiding magistrate, giving journalists a greater measure of protection.

In mediation, a third-party is appointed to oversee discussions and negotiations between the parties involved. In the case of libel and defamation cases, agreements could be reached through a right of reply, voluntary classifications, or various methods of mediation – a concept which is encouraged by the new law.

Around 14 criminal libel cases have been dropped and turned into civil lawsuits with the new law so far. The new law abolishes criminal libel and introduces a civil alternative to settling cases of slander. Defamation is also no longer a criminal matter, but has been reduced to a civil tort.

Article 10 of the Media and Defamation Act provides for the possibility of defamation cases being referred to mediation after the preliminary hearing by the court.

“The law does not mandate a particular type of mediation and therefore allows for flexibility,” Bonnici explained.

“It would however be reasonable to conclude that when reference to mediation is made by court decree this would be made in terms of the Mediation Act which establishes the legal framework for mediation and that mediation in terms of that Act would follow.”